Divided reactions to ECJ ruling on mandatory refugee relocation schemes – what now?

maandag 25 september 2017, analyse van Hoai-Thu Nguyen

Het Europees Hof van Justitie i oordeelde op 6 september dat de verplichte herverdeling van asielzoekers binnen de EU een legale beslissing is geweest. De beslissing leidde eerder tot grote bezwaren onder enkele lidstaten, waaronder Hongarije en Slowakije. Slowakije accepteert het oordeel van het hof, maar Hongarije verzet zich nog steeds tegen de beslissing. Als lidstaten blijven weigeren om asielzoekers op te nemen, overweegt de Europese Commissie i uitvoering van het besluit af te dwingen bij het Europese Hof.

On Wednesday, 6 September, the European Court of Justice dismissed in its entirety the actions brought by Slovakia and Hungary against the provisional mechanism for the mandatory relocation of asylum seekers (find the press release here).

Decision 2015/1601

In September 2015 the Council had adopted Decision 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. The decision provides for the relocation of 120.000 asylum seekers from Greece and Italy to the other Member States of the European Union, in addition to the 40.000 that were agreed upon by the European Council in July 2015 and then laid down in Council Decision 2015/1523.

Hungary and Slovakia, which together with the Czech Republic and Romania had voted against the decision, were supported by Poland in the proceedings, while Belgium, Germany, Greece, France, Italy, Luxembourg, Sweden and the European Commission intervened in support of the Council.The contested decision was adopted on the basis of article 78(3) TFEU, which allows the Council, on a proposal by the Commission and after consulting the European Parliament, to adopt provisional measurest necessary to respond to “an emergency situation characterized by a sudden inflow of nationals of third countries”. The Court affirmed the legality of the decision, including the mandatory relocation scheme, stating that the latter contributes to achieving the aim of helping Greece and Italy to cope with the impact of the 2015 migration crisis.

Dividing reactions

The judgment of the European Court of Justice was met with dividing reactions by the complainant countries. Slovakia accepted the judgment and said that it would “fully respect the verdict of the European Court of Justice” despite its skepticism about the feasibility of such compulsory quotas for relocation in real life. [1] Hungarian Prime Minister Orban i, on the other hand, pledged to not abide by the ruling, [2] while his Foreign Minister called the latter “irresponsible and appalling” and claimed that politics have “raped” EU law. [3] Similarly, Poland has vowed to also not accept any refugees relocated under scheme; Polish Prime Minister Beata Szydlo i said that the ruling will not change the government’s policy in that regard. [4]

Under the two Council decisions, Hungary is to take in 1294 refugees from Italy and Greece, Slovakia 902 and Poland 6182. Until 18 September 2017 Slovakia has taken in 16 refugees from Greece, while Hungary and Poland have yet to accommodate any. Overall, only 28.242 out of the intended 160.000 refugees have been relocated from Greece (19.702) and Italy (8540) under the scheme so far, [5] a fact which critics use as evidence against the efficiency of the scheme.

Compliance or persistance?

It remains to be seen what the impact of the judgment will be. Already in June 2017 the European Commission has launched infringement procedures against the Czech Republic, Hungary and Poland for their non-compliance with the two Council decisions. [6] No procedure was launched against Slovakia because it had pledged to accept more refugees. If now the Member States concerned continue to refuse to comply with the relocation quota, the European Commission could take them to Court to enforce the scheme – a step that Dimitris Avramopoulos i, Commissioner for Migration, Home Affairs and Citizenship, said that the Commission is ready to take. [7] If Poland, Hungary, and the Czech Republic (who has taken in 12 refugees out of the foreseen 2691) still persist to not comply with the Council decisions after the court judgment, the Commission can as a last step and in a second proceeding ask the ECJ to impose a fine on them.

[1] http://www.politico.eu/article/hungary-says-ecj-ruling-on-refugee-quotas-has-raped-eu-law-asylum-seekers-italy-greece-relocation-scheme/

[2] https://www.welt.de/politik/ausland/article168453665/Ungarns-Justizminister-attackiert-Europaeischen-Gerichtshof.html

[3] http://www.politico.eu/article/hungary-says-ecj-ruling-on-refugee-quotas-has-raped-eu-law-asylum-seekers-italy-greece-relocation-scheme/

[4] http://www.politico.eu/article/hungary-says-ecj-ruling-on-refugee-quotas-has-raped-eu-law-asylum-seekers-italy-greece-relocation-scheme/

[5] https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf

[6] http://europa.eu/rapid/press-release_IP-17-1607_en.htm

[7] https://euobserver.com/migration/138913